Explain ‘mischief’ of abuse of office clause - Hansungule

Explain ‘mischief’ of abuse of office clause - Hansungule
By Ernest Chanda
Sun 10 Oct. 2010, 04:02 CAT

PROFESSOR Michelo Hansungule has challenged the government to explain the mischief they have found with the abuse of office offence which they want to remove from the Anti Corruption Commission (ACC) Act.

And Prof Hansungule has written to the Clerk of the National Assembly, protesting the removal of the abuse of office offence from the ACC Act. In an interview, the Pretoria-based law Professor further challenged President Rupiah Banda to disclose the legal rationale behind the decision in order for people to appreciate and understand it.

He argued that for any government to repeal a law, there must be strong grounds which were in the public interest.

"Where exactly is Rupiah Banda driving the country? Can the government tell us what is wrong with this clause as to make them convene Parliament to delete it? What mischief have they found with this law? Where is the non-conformity between section 37 and the Article of the UN Convention?" Prof Hansungule asked.

"Laws are made by men and women. The time we believed they were made by God is long gone. Consequently, it is in the nature of law that it can be amended, revised, repealed and new ones introduced. But this is not done lightly, certainly not at the whims of one person or clique. There must be reasons for changing the law, which reasons should pass through the democratic threshold."

Prof Hansungule questioned what exactly the government was trying to achieve by removing the abuse of office offence, especially that the same law had been used to fight poverty.

He charged that President Banda's administration was mocking Parliament with such a bill.

"What exactly are we trying to achieve in Zambia? Only saint Rupiah and his disciple George know. How mischeavous! Look at the relevant UN Convention against Corruption on the point: Article 19. Abuse of functions...," he contended.

Prof Hansungule argued that so far, the government had not convinced the public on the reasons for removing the abuse of office offence.

He said the only possible reason was for those in power to protect themselves from possible prosecution after they had left office.

"But what is the problem with Rupiah Banda's obsession with the abuse of public office? Neither he nor his disciples have advanced anything close to basic reason. The one I have heard is that 'oh no, we are not deleting the clause. Those who are saying so do not know law. The clause will remain in the Penal Code'. It is nothing like this. This law is purely for personal protection. Someone put it simply that you can cheat some people sometimes but you cannot cheat all the people all the time," Prof Hansungule said.

"The point is, we have not used the Penal Code against corruption for a long time. It is de lege ferenda. Why? Because it has never achieved the purpose. The only reason I can think of for President Banda and George Kunda to go for the abuse of office clause in the Anti-Corruption Commission is that they fear it will corner them once out of office. There is no other possible reason sane members of the public can come up with to justify the move."

He charged that the government had chosen to delete the offence because it had proved effective in the fight against corruption.

"This is the worst form of hypocrisy on the part of our government to unashamedly ransack a clause whose only mistake is that it has successfully been used in previous cases to protect public resources. Abuse of office is one of the most rampant white-collar crimes in our country. Zambia has lost billions of kwacha as well as opportunities through abuse of office. It must be clearly understood that abuse of office is usually not a crime for junior civil servants and others in their league," he argued.

"Usually, junior civil servants have no power to abuse. Rather, it is the powerful politicians with overwhelming power that tend to abuse it for personal gain. With Chiluba now in government as President Banda's political adviser, it is not surprising we are rewriting the struggle against poverty. Rather than renege on the fight against corruption, this is the time government should have left no stone unturned in ensuring the money the donors have left in the treasury under HIPC is put to good use. Zambians must watch closely how their MPs are going to vote when this bill comes up for the final decision."

And Prof Hansungule has written to Parliament for permission to submit to the Corruption Bill through teleconference.

"I would like to indicate my strong protest at aspects of the bill more especially the purported removal from the bill of the criminal offence of Abuse of Office. As a Zambian citizen, I believe I have a right to appear before the relevant parliamentary committee responsible for scrutinising this bill to have my views heard," requested Prof Hansungule.

"I would like to indicate my interest to address the Committee on this particular issue. As I am not in the country, I would appreciate if Parliament arranges for me to appear before the Committee through Video Conference, which I can arrange from this side."

The government has presented the Corruption bill to Parliament and notably missing is the abuse of office offence.

In the current ACC Act, section 37 carters for the abuse of office offence, but in the bill, the same section has been replaced by Concealment of Offence.